Chambers v. Pennycook

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-2195

___________

Kevin Chambers, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Michael Pennycook, Agent, St. Louis *

County Drug Task Force; Bradley *

Kelling, Officer; Andria Van Mierlo, *

*

Appellees. *

___________

Submitted: October 20, 2010

Filed: June 6, 2011

___________

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.

___________

COLLOTON, Circuit Judge.

Appellant Kevin Chambers brought this action against three law enforcement

officers pursuant to 42 U.S.C. § 1983. He alleged that the officers violated his rights

under the Fourth Amendment by using excessive force against him during and shortly

after his arrest. The district court1 concluded that Chambers’s failure to show greater

than de minimis injury was fatal to his claim and dismissed the complaint. We now

1

The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the

Eastern District of Missouri.

conclude that a citizen may prove an unreasonable seizure based on an excessive use

of force without necessarily showing more than de minimis injury, but we hold that

the officers here are entitled to qualified immunity, because their alleged actions did

not violate clearly established law. Accordingly, we affirm the district court’s grant

of summary judgment.

I.

On the afternoon of August 4, 2005, a team of police officers from St. Louis

County executed a warrant to search for evidence of illegal drug activity at the

apartment of Chambers’s stepdaughter. Chambers was visiting when police arrived,

and he was quickly placed under arrest. All three defendants participated in the

search of the apartment. Bradley Kelling, a sergeant with the St. Louis County Police

Department and a member of its Tactical Response Team, entered the apartment and

observed Chambers until he was arrested and handcuffed. Andria Van Mierlo, a

detective with the St. Louis County Police Department, and Michael Pennycook, an

officer with the City of Maplewood, Missouri, Police Department, entered the

apartment only after the Tactical Response Team had arrested and handcuffed

Chambers.

At his deposition, Chambers testified that members of the Tactical Response

Team held him on the floor, handcuffed him, and jammed guns into his back while

Kelling asked him what he was doing at the apartment. According to Chambers,

when he told Kelling that he was at the apartment to visit his stepdaughter, Kelling

called him a liar, cursed at him, kicked him several times on both sides of his body,

and pressed his foot down on Chambers’s back. Chambers stated that the officers

then brought him outside. According to Chambers, Kelling later emerged from the

apartment, announced that he was going to search Chambers again, and planted a

glass pipe in Chambers’s pocket. Kelling was the only member of the Tactical

Response Team whom Chambers identified by name.

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Following Chambers’s arrest, he was transported to the St. Louis County Police

Department, and then to the county jail. Chambers repeatedly complained of back

pain, and shortly after his arrival at the jail, Pennycook and Van Mierlo transported

him in an unmarked police car to St. Mary’s Health Center for an evaluation. Van

Mierlo drove while Chambers sat in the passenger seat, and Pennycook sat in the seat

immediately behind Chambers. Chambers was handcuffed behind his back and his

seatbelt was fastened.

Chambers testified at his deposition that Van Mierlo and Pennycook adjusted

his seat so that it was leaning as far forward as possible, with Chambers’s head almost

touching the dashboard. The officers complained that Chambers was wasting their

time by requiring a ride to the hospital. According to Chambers, Van Mierlo began

to drive erratically, accelerating and braking suddenly so that Chambers would be

jerked back and forth in his seat. Chambers testified that Pennycook, meanwhile,

forcefully kicked the back of his seat and used his arm to choke Chambers from

behind, while complaining that Chambers was wasting their time. In Chambers’s

account, the trip lasted approximately twenty minutes because Van Mierlo chose to

drive in circles rather than go straight to the hospital. Chambers also testified that

after they arrived at St. Mary’s, Van Mierlo and Pennycook roughly jerked him

around by his handcuffs during the walk from the car to the building’s front doors.

Once Chambers arrived at the hospital, he was evaluated by Dr. Randall Speck.

Chambers testified that he told Speck that he was suffering from back and neck pain,

which was so severe that Chambers was crying and had difficulty concentrating.

Chambers stated that Speck had told him that his back showed signs of redness and

bruising.

According to a note that Speck signed, Chambers told the hospital personnel

that he had pain in his upper back caused by the officers who initially arrested him,

although he said he was unsure whether the officers actually struck him or just fell

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on him. The note said that Chambers denied any head or neck injury, arm or leg pain,

or shortness of breath. Speck signed another note describing Chambers’s final

diagnosis as a “back contusion,” while noting that there was no bruising or swelling

on Chambers’s spinal area, that Chambers showed no acute distress, and that

Chambers had full range of motion in his arms and legs without discomfort. The note

also stated that x-rays of Chambers’s spine and ribs showed no evidence of acute

fractures. Speck declared Chambers fit for confinement and recommended that he

“take either Tylenol or Ultram [a pain medication] . . . as needed for pain.” The State

prosecuted Chambers in connection with his arrest, and he eventually pleaded guilty

to a felony drug charge pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).

On September 12, 2005, Chambers commenced this action against St. Louis

County, the St. Louis County Drug Task Force, and the three officers in their official

and personal capacities, alleging that the defendants had violated his rights under the

Fourth, Fifth, Eighth, and Fourteenth Amendments. In the same action, Chambers

brought an assault and battery claim under Missouri law. He sought damages and

declaratory and injunctive relief. The district court granted the defendants’ motions

to dismiss all of Chambers’s claims. Chambers v. St. Louis Cnty., No. 4:05-cv-

01469-SNL, slip op. at 4 (E.D. Mo. April 18, 2006). Chambers appealed, and a panel

of this court affirmed the dismissal of the claims against St. Louis County and the St.

Louis County Drug Task Force, reversed the dismissal of the claims against Kelling,

Pennycook, and Van Mierlo in their individual capacities, and remanded to the

district court for further proceedings. Chambers v. St. Louis Cnty., 247 F. App’x 846

(8th Cir. 2007) (per curiam).

On May 11, 2009, the district court granted summary judgment in favor of the

remaining defendants. The court reasoned that Chambers had presented no evidence

that he had suffered anything more than de minimis injuries, and “[s]ince plaintiff has

failed to produce evidence of any serious or permanent injuries, his claim for

excessive force in violation of the Fourth Amendment fails.” Chambers v. St. Louis

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Cnty., No. 4:05-cv-01469-SNLJ, slip op. at 10-11 (E.D. Mo. May 11, 2009). The

district court also dismissed the state law assault and battery claims without prejudice,

declining to exercise supplemental jurisdiction over those claims after it determined

that all the federal claims should be dismissed. Having found no constitutional

violation, the district court did not address the officers’ claims of qualified immunity.

Chambers again appealed to this court, arguing that the district court lacked

jurisdiction and that the court erred by dismissing his claim for damages against the

officers in their individual capacities, refusing his requests for appointed counsel, and

failing to reprimand the defendants and their counsel for “deceitful and unethical

tactics.” On February 23, 2010, we affirmed the judgment of the district court.

Chambers v. Pennycook, 366 F. App’x 707 (8th Cir. 2010) (per curiam). Chambers

filed a petition for rehearing, arguing that our decision conflicted with the Supreme

Court’s holding in Wilkins v. Gaddy, 130 S. Ct. 1175 (2010), which was decided on

the day before we issued our opinion. We granted the petition for rehearing, vacated

our opinion and judgment of February 23, 2010, and appointed counsel to represent

Chambers. We also directed the parties to file supplemental briefs concerning the

question whether a plaintiff must show some minimum level of injury in order to state

a valid Fourth Amendment excessive force claim under § 1983, and, if not, whether

the officers here are entitled to qualified immunity.

II.

A.

Chambers first argues that the district court lacked jurisdiction to rule on the

officers’ motions for summary judgment while his interlocutory appeal of the district

court’s denial of his motion for appointment of counsel was still pending. Generally,

“[t]he filing of a notice of appeal . . . confers jurisdiction on the court of appeals and

divests the district court of its control over those aspects of the case involved in the

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appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per

curiam) (emphasis added); see Ahlberg v. Chrysler Corp., 481 F.3d 630, 638 (8th Cir.

2007). Because the defendants’ motions for summary judgment were not “aspects of

the case involved in the appeal” of the district court’s denial of Chambers’s motion

for appointment of counsel, the court retained jurisdiction to rule on the dispositive

motions.

B.

We review the district court’s grant of summary judgment de novo, viewing the

record in the light most favorable to the nonmoving party and drawing all reasonable

inferences in that party’s favor. Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir.

2006). Although the district court did not reach the qualified immunity issue, “[w]e

may uphold a grant of summary judgment for any reason supported by the record,

even if different from the reasons given by the district court.” Johnson v. Outboard

Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). Qualified immunity shields a

government official from liability and the burdens of litigation in a § 1983 action for

damages unless the official’s conduct violated a clearly established constitutional or

statutory right of which a reasonable official would have known. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). When a defendant asserts qualified immunity

at the summary judgment stage, the plaintiff must produce evidence sufficient to

create a genuine issue of fact regarding whether the defendant violated clearly

established law. Johnson v. Fankell, 520 U.S. 911, 915 (1997).

To defeat a claim of qualified immunity, a plaintiff alleging excessive use of

force must present sufficient facts to show that the officer’s conduct violated a

constitutional right, and he also must establish that the constitutional right was clearly

established. While we have discretion to decide which question should be addressed

first, Pearson v. Callahan, 129 S. Ct. 808, 818 (2009), we think it best in this case to

start with the constitutional question. This court has said several times, over the

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course of more than fifteen years, that “[i]t remains an open question in this circuit

whether an excessive force claim requires some minimum level of injury.” Copeland

v. Locke, 613 F.3d 875, 881 (8th Cir. 2010) (alteration in original) (internal quotation

omitted); see also Cook v. City of Bella Villa, 582 F.3d 840, 850 (8th Cir. 2009);

Cavataio v. City of Bella Villa, 570 F.3d 1015, 1019-20 (8th Cir. 2009); Andrews v.

Fuoss, 417 F.3d 813, 818 (8th Cir. 2005); Hunter v. Namanny, 219 F.3d 825, 831 (8th

Cir. 2000); Dawkins v. Graham, 50 F.3d 532, 535 (8th Cir. 1995). Continued

postponement of that question has resulted in uncertainty about the rights of citizens

and the responsibilities of law enforcement officers under the Fourth Amendment.

One aspect of the recurring “open question” is squarely presented in this case:

whether a plaintiff must demonstrate greater than de minimis injury to establish a use

of excessive force that violates the Fourth Amendment. Resolution of that issue will

give guidance to officials about how to comply with legal requirements and will allow

an avenue of redress for wronged citizens in appropriate circumstances. The question

is unlikely to be resolved in the context of a criminal case or in litigation over

municipal liability. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998).

And none of the factors that typically counsel against a decision on the constitutional

question are present here. See Pearson, 129 S. Ct. at 818-20. Having thought hard

twice about how to exercise our discretion, see Camreta v. Green, No. 09-1454, 2011

WL 2039369, at *9 (U.S. May 26, 2011), and having ordered supplemental briefing

and devoted substantial resources to considering the constitutional question in this

case, we will proceed to decide it.2

2

This case does not present the question whether an excessive force claim may

proceed without a showing of “actual injury,” see Dawkins, 50 F.3d at 535, a question

that apparently has divided the circuits. Compare Morrison v. Bd. of Trs., 583 F.3d

394, 407 (6th Cir. 2009), Slicker v. Jackson, 215 F.3d 1225, 1231-32 (11th Cir.

2000), and Wilks v. Reyes, 5 F.3d 412, 416 (9th Cir. 1993), with Glenn v. City of

Tyler, 242 F.3d 307, 314 (5th Cir. 2001).

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C.

We begin by asking whether Chambers has presented evidence sufficient to

make out the deprivation of a constitutional right. Pearson, 129 S. Ct. at 815-16.

Chambers complains that the officers’ alleged use of force violated his rights under

the Fourth, Fifth, and Eighth Amendments (as incorporated against the States through

the Fourteenth Amendment), but we think the only provision properly invoked is the

Fourth Amendment. “Where, as here, the excessive force claim arises in the context

of an arrest or investigatory stop of a free citizen, it is most properly characterized as

one invoking the protections of the Fourth Amendment . . . .” Graham v. Connor,

490 U.S. 386, 394 (1989); see Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th

Cir. 2009).

At oral argument, counsel for two of the officers asserted that Chambers’s

claim against them does not arise under the Fourth Amendment, because the Fourth

Amendment applies only up to the point of arrest. We have noted the existence of a

“legal twilight zone” between arrest and sentencing, where it is unclear whether

excessive force claims are governed by the Fourth Amendment or cases decided

based on the Fourteenth Amendment and substantive due process. Wilson v. Spain,

209 F.3d 713, 715 (8th Cir. 2000). This court has ruled, however, that it is

appropriate to use a Fourth Amendment framework to analyze excessive force claims

arising out of incidents occurring shortly after arrest, apparently because those

incidents still occur “in [the] course of” a seizure of a free citizen. See Moore v.

Novak, 146 F.3d 531, 535 (8th Cir. 1998). In particular, we have applied Fourth

Amendment excessive force standards to incidents occurring during the

transportation, booking, and initial detention of recently arrested persons. See

Wilson, 209 F.3d at 715-16; Moore, 146 F.3d at 535; Mayard v. Hopwood, 105 F.3d

1226, 1228 (8th Cir. 1997). The alleged excessive force here occurred during and

shortly after Chambers’s arrest, while he was on the floor of the apartment where

police encountered him and while he was transported to the hospital for a medical

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evaluation as part of the detainee intake process. Our cases therefore dictate that the

claims against the officers are governed by the Fourth Amendment.

In Graham v. Connor, the Supreme Court mandated the application of an

objective “reasonableness” standard when evaluating claims that government agents

used excessive force in violation of the Fourth Amendment. 490 U.S. at 396. It is

well-established that “the right to make an arrest or investigatory stop necessarily

carries with it the right to use some degree of physical coercion or threat thereof to

effect it.” Id. An officer’s use of force violates the Fourth Amendment when it is

objectively unreasonable, given the facts and circumstances of the particular case, as

“judged from the perspective of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” Id. at 396-97. The determination whether the force used

to effect a seizure was reasonable ultimately requires a case-specific balancing of

“‘the nature and quality of the intrusion on the individual’s Fourth Amendment

interests’ against the countervailing governmental interests at stake.” Id. at 396

(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)).

The officers here assert that Chambers has failed to show the violation of a

constitutional right, because he offered no evidence that he suffered greater than de

minimis injuries as a result of the alleged excessive force. This court has concluded

that “relatively minor scrapes and bruises” and a “less-than-permanent aggravation

of a prior shoulder condition” are to be considered de minimis injuries, Wertish v.

Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006), and we agree that Chambers has not

offered evidence to show that he suffered any greater injury.

We are not convinced, however, that evidence of only de minimis injury

necessarily forecloses a claim of excessive force under the Fourth Amendment. The

appropriate inquiry is “whether the force used to effect a particular seizure is

‘reasonable.’” Graham, 490 U.S. at 396 (emphasis added). A de minimis use of force

is insufficient to support a claim, see Hunter, 219 F.3d at 832; Curd v. City Court,

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141 F.3d 839, 841 (8th Cir. 1998), and it may well be that most plaintiffs showing

only de minimis injury can show only a corresponding de minimis use of force. The

degree of injury is certainly relevant insofar as it tends to show the amount and type

of force used. See Cavataio, 570 F.3d at 1020; Cook, 582 F.3d at 850; Wertish, 433

F.3d at 1067; Curd, 141 F.3d at 841; Greiner v. City of Champlin, 27 F.3d 1346, 1355

(8th Cir. 1994); Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1082 (8th Cir.

1990). But it is logically possible to prove an excessive use of force that caused only

a minor injury, and a rule that forecloses a constitutional claim in that circumstance

focuses on the wrong question.

The degree of injury should not be dispositive, because the nature of the force

applied cannot be correlated perfectly with the type of injury inflicted. Some

plaintiffs will be thicker-skinned than others, and the same application of force will

have different effects on different people. A greater than de minimis injury

requirement under the Fourth Amendment would mean that the same quantum of

force, in the same circumstances, could be unconstitutional when applied to a citizen

with a latent weakness and constitutional when applied to a hardier person. The

governing rule should not turn on such unpredictable and fortuitous consequences of

an officer’s use of force. See Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002).

The rule should focus instead on whether the force applied is reasonable from the

perspective of a reasonable officer on the scene at the time the force is used. See

Graham, 490 U.S. at 396.3

3

The Supreme Court’s decision in Wilkins v. Gaddy, holding that de minimis

injury does not foreclose an excessive force claim under the Eighth Amendment, is

not controlling here. “[T]he subjective motivations of the individual officers are of

central importance in deciding whether force used against a convicted prisoner

violates the Eighth Amendment,” Graham, 490 U.S. at 398, while “[t]he Fourth

Amendment inquiry is one of ‘objective reasonableness’ under the circumstances, and

subjective concepts like ‘malice’ and ‘sadism’ have no proper place in that inquiry.”

Id. at 399. Wilkins, however, does reinforce two propositions that are relevant here:

“The extent of injury may . . . provide some indication of the amount of force

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Our cases concerning excessive force claims arising from handcuffing do

include language that might support the position of the officers here. We said in

Hanig v. Doe, 415 F.3d 822 (8th Cir. 2005), that “[f]or the application of handcuffs

to amount to excessive force, there must be something beyond minor injuries.” Id.

at 824; accord Crumley v. City of St. Paul, 324 F.3d 1003, 1008 (8th Cir. 2003).

Those decisions, however, should not be read to establish a general rule equating

quantum of injury with quantum of force under the Fourth Amendment.

“Handcuffing inevitably involves some use of force,” Wertish, 433 F.3d at 1067, and

it almost inevitably will result in some irritation, minor injury, or discomfort where

the handcuffs are applied. See Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir.

2002). To prove that the force applied was excessive in that context, therefore, a

plaintiff must demonstrate something more. See Fisher v. City of Las Cruces, 584

F.3d 888, 898 (10th Cir. 2009). As a general proposition, however, there is no

uniform requirement that a plaintiff show more than de minimis injury to establish an

application of excessive force. See Lambert v. City of Dumas, 187 F.3d 931, 936 (8th

Cir. 1999) (holding that “[a] single small cut of the lateral right eyelid and small

scrapes of the right posterior knee and upper calf” were sufficient to support an

excessive force claim).4

The officers here contend that if greater than de minimis injury is not required

in order to state a Fourth Amendment excessive force claim, then police officers will

be reluctant to use any force when making a seizure, for fear of causing some slight

applied,” but “[i]njury and force . . . are only imperfectly correlated.” 130 S. Ct. at

1178.

4

It appears that most circuits to have considered the issue have reached the

same conclusion. See Morrison, 583 F.3d at 407; Chelios v. Heavener, 520 F.3d 678,

690 (7th Cir. 2008); Hayes v. New York City Police Dep’t, 212 F. App’x 60, 62 (2d

Cir. 2007) (per curiam); Wardlaw v. Pickett, 1 F.3d 1297, 1304 n.7 (D.C. Cir. 1993);

see also Bastien v. Goddard, 279 F.3d 10, 14-16 & n.5 (1st Cir. 2002); Wilks, 5 F.3d

at 416. But see Glenn, 242 F.3d at 314.

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harm that violates a detainee’s constitutional rights. We appreciate the concerns of

the officers, but we think they are misplaced. Nothing in our opinion today lightens

the significant burden that a plaintiff must carry in a § 1983 suit based on a Fourth

Amendment excessive force claim. Police officers undoubtedly have a right to use

some degree of physical force, or threat thereof, to effect a lawful seizure, Graham,

490 U.S. at 396, and reasonable applications of force may well cause pain or minor

injuries with some frequency. It remains firmly established that “[n]ot every push or

shove, even if it may later seem unnecessary in the peace of a judge’s chambers,

violates the Fourth Amendment.” Id. (internal citation and quotation omitted). The

dispositive question is whether the officer’s conduct was objectively reasonable under

the circumstances, as judged from the perspective of a reasonable officer on the scene

at the time the force was applied. See id.; Cook, 582 F.3d at 849.

The facts of the incident in this case are hotly disputed, but taking them in the

light most favorable to Chambers, we conclude that the alleged conduct of the

officers was not objectively reasonable. According to Chambers’s testimony, Kelling

kicked him several times on both sides of his body, although he was restrained on the

ground and offering no resistance. Chambers also testified that Pennycook repeatedly

choked and kicked him during the trip to the hospital, and that Van Mierlo extended

the journey by taking a roundabout route and intentionally driving so erratically that

Chambers was jerked roughly back and forth in his car seat while his head was

positioned adjacent to the dashboard. While the absence of significant injury surely

would be one factor that a jury would consider in determining whether to credit the

plaintiff’s account, Chambers has presented sufficient evidence, if believed, to

establish a violation of the Fourth Amendment. The gratuitous use of force alleged

by Chambers was not reasonable under the circumstances.

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D.

The second step in the qualified immunity analysis is to determine whether the

right that was violated was “clearly established” at the time of the defendant’s alleged

misconduct. Pearson, 129 S. Ct. at 816. For a right to be clearly established, “[t]he

contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton, 483

U.S. 635, 640 (1987). A plaintiff need not show that the “very action in question

ha[d] previously been held unlawful,” but he must establish that the unlawfulness was

apparent in light of preexisting law. Id. In other words, we must ask whether the law

at the time of the events in question gave the officers “fair warning” that their conduct

was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002).

Generally speaking, of course, it was clearly established in August 2005 that

an arrestee had a right to be free from the use of excessive force. See, e.g., Kukla v.

Hulm, 310 F.3d 1046, 1050 (8th Cir. 2002). It was not clearly established, however,

that an officer violated the rights of an arrestee by applying force that caused only de

minimis injury. Just three days before the events giving rise to this case, we filed an

opinion reiterating that “[i]t remains an open question in this circuit whether an

excessive force claim requires some minimum level of injury.” Andrews, 417 F.3d

at 818 (alteration in original) (internal quotation omitted). The Andrews opinion

suggested that “de minimis injuries” may “preclude a claim for excessive force,” id.

(emphasis added), and also noted that “the lack, or minor degree, of any injury is also

relevant in determining the reasonableness of the force used to effect an arrest.” Id.

(emphasis added) (citing Greiner, 27 F.3d at 1355). The court ultimately resolved

that case based on qualified immunity. Id. at 819.

Given the state of the law in August 2005, a reasonable officer could have

believed that as long as he did not cause more than de minimis injury to an arrestee,

his actions would not run afoul of the Fourth Amendment. A reasonable officer was

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permitted to assume that legal conclusion when determining how to proceed, and he

is entitled to have his conduct judged according to that standard for purposes of

qualified immunity. See Dunn v. Denk, 79 F.3d 401, 403 (5th Cir. 1996) (en banc);

Harper v. Harris Cnty., 21 F.3d 597, 601 (5th Cir. 1994) (per curiam).

According to the testimony given by Chambers, the officers used a degree of

force that was excessive. Under the law in August 2005, the officers ran the risk of

liability if that force caused significant injury. But the converse is also true. The

officers knew there was some chance that their actions would cause only de minimis

injury, and it was reasonable for the officers to believe that they remained within

constitutional bounds if that was the result. As it turned out, the force did not cause

more than de minimis injury. We reject in this decision a constitutional rule that turns

on the arrestee’s degree of injury, but given the law prevailing at the time of the

incident, we conclude that the officers are entitled to qualified immunity.

III.

Chambers raises two other points on appeal. First, he contends that the district

court erred in failing to grant his request to sanction appellees and their counsel under

Federal Rule of Civil Procedure 11 for “deceitful and unethical tactics.” The district

court’s on-the-scene judgment in sanctions matters is entitled to substantial deference,

Teamsters Nat’l Freight Indus. Negotiating Comm. v. MME, Inc., 116 F.3d 1241,

1242 (8th Cir. 1997) (per curiam), and after a careful review of the record, we see no

abuse of discretion.

Second, Chambers asserts that the district court erred in denying his request for

appointment of counsel. Chambers had no constitutional or statutory right to

appointed counsel, Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 794 (8th Cir. 2006),

but the district court has authority to recruit counsel for an indigent person in

appropriate circumstances. See 28 U.S.C. § 1915(e)(1). The court has a good deal

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of discretion to determine whether representation is warranted given the nature of the

case and the litigants. Phillips, 437 F.3d at 794. We think the district court

reasonably determined that recruitment of counsel was not necessary in view of the

relatively straightforward questions of fact that the court thought dispositive under

the prevailing law. We later appointed counsel on appeal to assist with our

consideration of more complex legal issues, and Chambers thus suffered no prejudice

from any deficiency of his legal acumen in the district court.

The court appreciates the efforts of appointed counsel in presenting the case

for Mr. Chambers on rehearing.

* * *

The judgment of the district court is affirmed.

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